Intervention (by Invitiation) in Venezuela?

[Ralph Janik teaches international law at the University of Vienna, Faculty of Law and Webster Private University Vienna. He specializes in the interplay of international law and international relations. Twitter: @RalphJanik]

The crisis in Venezuela could enter a new phase. Juan Guaidó recently flirted with the idea of a US intervention on his behalf when he refrained from ruling out to request such a measure. However, and as understandable as the wish for (regime) change in Venezuela may be, such an intervention by invitation would be unlawful.

Intervention by Invitation in International Law

As it is well known, the concept of an intervention by invitation is a generally accepted legal basis to use force. In contrast to the right to self-defense and Security Council authorizations under Chapter VII, it is not an exception to article 2/4 UN Charter. Rather the prohibition of the. Use of force is not violated in the first place whenever a state – or, more precisely, its government – has given its consent.

Whose consent?

At the same time, an invitation “at the request of the opposition is not allowed” (Nicaragua case, para 246; see also Article 20 of the ILC Articles on State Responsibility).

This brings us right to the main obstacle to a possible intervention in Venezuela: who may speak on behalf of Venezuela? Juan Guaidó or Nicolas Maduro?

Tthe former now enjoys worldwide support while Maduro’s legitimacy or even the lawfulness of his second term is widely disputed.

Yet, that is not the end of the story. Most countries or important regional organizations like the OAS do not seem to have switched recognition completely and still consider Maduro as Venezuela’s de iure president. Even if this status is rejected, that does not necessarily render an intervention lawful: it is one thing to acknowledge (as the majority of EU member states did) or even “recognize” (as the US, Canada, Peru, or a number of European foreign ministers did) a new president and quite another to intervene militarily on the basis of his consent.

Interventions by Invitation are Prone to Abuse

There is no general practice in support for an invasion in Venezuela, not even a single fitting precedent. Rather, the history of interventions by invitation has shown that this concept is inherently prone to abuse. Be it the US intervention in Grenada 1983, the Soviet invasions after the 1968 Prague Spring and in Afghanistan 1979, or Russia’s seizure of Crimea (remember when Vitali Churkin presented a letter by then-already ousted Ukrainian president Viktor Yanukovych at a Security Council meeting) – there are countless examples of interventions where consent was not granted by a competent organ and did thus not constitute a valid legal basis. Hence, states are restrictive and skeptical whenever it is invoked.

No Security Council Resolution

In addition, while some interventions by invitation where indeed accepted or at least not rejected wholeheartedly by the international community, none of them is substantially similar to Venezuela.

To begin with, two examples concern situations where an intervention re-established the status quo ante after the overthrow of democratically-elected presidents.

in 1994, the Security Council explicitly authorized a US-led intervention to restore the government of Bertrand Aristide, who had also called for an intervention while being in exile (resolution 940). In Sierra Leone, then, Ahmad Tejan Kabbah similarly called for an intervention to re-establish his presidency after being overthrown. The Security Council reacted with presidential statements and later welcomed “the fact that the rule of the military junta has been brought to an end.”

In Mali 2013, then, the UNSC did not directly pronounce on France’s efforts to help the government re-gain control over the self-proclaimed “State of Azawad” – nevertheless, it was not rejected by any state (at least not to my knowledge) and France could not only rely on the consent of Mali’s government but also a Security Council resolution where it clarified which government had to be considered as representing Mali de iure.

The Gambia Precedent?

The last and, for present purposes most important example, is the post-election crisis in The Gambia 2016/2017. Similar to Venezuela, no coup d’état had taken place and two men claimed to be president: then-incumbent president Yahya Jammeh and Adama Barrow, whom the AU, ECOWAS, and the Security Council viewed as the winner of the elections. Given that Barrow was sworn-in in exile (in neighboring Senegal, which was also the lead state in the subsequent intervention), he did – just like Guaidó – not exercise effective control as necessary for claiming the status of a head of state.

In contrast to Venezuala, however, the Security Council then passed a resolution: to alleviate Russian concerns in particular, the “all necessary means”-formula in an earlier draft had been dropped in resolution 2337 (2017). Yet, while the Security Council did thus not authorize the use of force explicitly it did also not outright reject an intervention (by invitation)– rather, resolution 2337 implicitly accepted such a measure by stating that “political means” should be used “first” (and thus not exclusively).

Elections, anyone?

The simple fact that there had been previous (albeit not free and fair) presidential elections where the incumbent president refused to step down despite having lost further diminished the precedential value of the intervention in The Gambia. In Venezuela, the incumbent president Nicolas Maduro won, albeit in widely-criticized elections. His now-rival (as indicated above, arguably rightly) rather relies on a constitutional provision and a promise to hold elections as soon as possible.

What’s left of the Non-Intervention Principle

It may well be the case that this claim is justified under Venezuelan constitutional law. Yet, I am certainly not an expert on Venezuelan constitutional law or Venezuelan politics. But I don’t have to be. The assessment of outsiders is more or less irrelevant here.

What matters are rather two fundamental principles of international law, ie the notion of sovereignty and the corresponding non-intervention principle. While the scope of both has changed substantially in recent years, they are not entirely irrelevant. While I would argue that acknowledging or even “recognizing” legitimate presidents who lack effective control is no longer necessarily unlawful, interventions in situations like the one in Venezuela are: in contrast to the other examples mentioned above, the Security Council is and will remain silent. In addition, Guaidó neither exercises effective control nor was he elected by the people directly.

Subsequent Practice: Illegal, but Legitimate?

The reaction of the international community can nevertheless not be anticipated. Two reactions seem likely: on the one hand, the General Assembly could pass a resolution condemning the intervention. We have a precedent here, namely the US intervention in Panama 1989. Similar to Venezuela and Maduro, Noriega was certainly not an overly legitimate and benevolent leader (he was not de iure head of state). Still, the UNGA condemned the US invasion as a “flagrant violation of international law and the independence, sovereignty and territorial integrity of States”.

On the other hand, it may also happen that most states remain silent or only reluctantly criticize the US. Perhaps the international community would, as it did so often in the past, only do as much as necessary to prevent a fundamental change of the law by rejecting the precedential value of an intervention in Venezuela – yet another instance of an “illegal, but legitimate” intervention?